In any litigation there will come a point when each party has to disclose all documents which are relevant to the claim and must do so whether those documents are helpful or unhelpful to the particular party’s case.

One class of documents routinely excluded from disclosure is those for which ”legal privilege” is claimed. Legal privilege comes in two forms, so-called legal advice privilege and litigation privilege. Legal advice privilege protects confidential communications between aclient and his professional legal adviser made for the purpose of giving or seeking legal advice. Litigation privilege, by contrast, protects confidential communications between a client, his legal advisor and a third party (such as an expert) where the dominant purpose of the communication is in connection with actual or contemplated litigation. Commonly legal privilege is claimed for documents in which any advice on the claim is set out. But is that right, and what are the implications if it isn’t?

The EAT has recently given its decision in the case of Howes v Hinckley Borough Council and decided that:

• advice privilege does not attach to the advice of employment consultants which will include the advice of trade unions, consultants and other such advisors;

• privilege may not attach to advice given by qualified solicitors who do not hold themselves out as acting in the capacity of a solicitor; and

• where a document was obtained to both determine a grievance and in case of any future legal proceedings, litigation privilege would not apply to it if the subsequent litigation was not shown to be the dominant purpose of the advice.

This does give scope for a broader obligation of disclosure than many think and it also means anyone using the services of consultants to give them ”legal advice” may have to disclose that advice in the course of legal proceedings.

This case can be found at: